¶3 We conclude that the circuit court erroneously exercised its discretion when it granted Ringer’s motion in limine, allowing him to introduce at trial evidence that the child complainant made prior allegedly untruthful allegations of sexual assault against her biological father. Such evidence is admissible only if the following three criteria are satisfied: (1) the proffered evidence fits within Wis. Stat. § 972.11(2)(b)3 (2007-08); (2) the evidence is material to a fact at issue in the case; and (3) the evidence is of sufficient probative value to outweigh its inflammatory and prejudicial nature. State v. DeSantis, 155 Wis. 2d 774, 785, 456 N.W.2d 600 (1990). In this case, the circuit court erroneously exercised its discretion when it determined that the proffered evidence fits within § 972.11(2)(b)3. The circuit court erred by concluding that a jury could reasonably find that the complainant made prior untruthful allegations of sexual assault against her biological father. Because we conclude that evidence of the child complainant’s alleged prior untruthful allegations of sexual assault is not admissible at trial, we need not address what form the evidence may take if admitted.
Ringer is charged with repeated-acts sexual assault of a child; he sought admissibility of the alleged victim’s (Amber) allegations that her father (Christopher) sexually assaulted her, allegations that Ringer says were untruthful. The trial court ruled that the evidence fell within the rape-shield exception for prior untruthful accusations, § 972.11(2)(b)3; the court of appeals granted interlocutory review but affirmed; and the supreme court now reverses.
Amber accused Christopher of sexual contact over one weekend when they slept in the same bed. Christopher acknowledged having slept in the same bed, admitted rubbing her stomach over her clothing for up to 15 minutes, but denied intentionally touching any intimate area. Is that enough to establish a “prior untruthful allegation of sexual assault”? No, the court now says.
¶32 We arrive at that determination by examining Wis. Stat. § 901.04, which governs preliminary questions concerning the admissibility of evidence and cross-references Wis. Stat. § 972.11(2). Wisconsin Stat. § 901.04(1) provides: “Preliminary questions concerning . . . the admissibility of evidence shall be determined by the judge, subject to sub. (2) and . . . [§] 972.11(2).” Wisconsin Stat. § 901.04(2) recognizes the doctrine of conditional relevancy; that is, “[w]hen the relevancy of evidence depends upon the fulfillment of a condition of fact, the judge shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.” (Emphasis added.) In other words, “[t]he judge decides whether there is (or will be) sufficient evidence of the condition; the jury determines ultimately whether the condition exists.” Blinka, supra § 104.2, at 35. DeSantis applies the conditional relevancy analysis of § 901.04(2). See 155 Wis. 2d at 786 n.5; Blinka, supra § 104.2, at 35 n.5; § 420.4, at 288. Under the admissibility standard set forth in DeSantis, the issue is not whether the judge is convinced by a preponderance of the evidence that the complainant made prior untruthful allegations of sexual assault. Rather, the judge determines whether a jury, acting reasonably, could find that it is more likely than not that the complainant made prior untruthful allegations of sexual assault. See Blinka, supra § 104.2, at 35.
Ringer’s proffer falls short, because: Amber never recanted, ¶37; Christopher’s statements tend to corroborate rather than discredit her allegations, ¶38; mere denials of guilt (such as Christopher’s) aren’t enough, ¶39. The court strongly suggests that either the victim must recant, or the defendant somehow come up with proof of falsity, id. and n. 13. The evidence of falsity in this case was vanishingly small, too small even to overcome a low, “more likely than not” barrier. If future implementation keeps the facts in mind, the fall-out might not be severe. This is all very interesting, to be sure, but distracting in a fundamental sense, for if you do manage to overcome the hurdle, high or low, of proving a false accusation, then you aren’t really adducing evidence of sexual conduct but its absence. Why are rape-shield strictures even applicable at that point? Jessie L. Redmond v. Kingston, 240 F.3d 590 (7th Cir. 2001):
And thus the court’s ruling, though ostensibly based on the rape-shield statute, derives no support from that statute. The statute protects complaining witnesses in rape cases (including statutory-rape cases) from being questioned about their sexual conduct, but a false charge of rape is not sexual conduct. See Wis. Stat. § 972.11(2)(a) (defining such conduct); cf. United States v. Bartlett, 856 F.2d 1071, 1088 (8th Cir.1988); United States v. Stamper, supra, 766 F.Supp. at 1399 and n. 2. The false-charge “exception” to the rape-shield statute is not really an exception, but rather a reminder of the limited meaning of “sexual conduct” as defined in the statute. The only basis for the court’s ruling was the general principle of the law of evidence, which is codified for federal trials in Fed.R.Evid. 403 but is equally a principle of Wisconsin’s law of evidence, see Wis. Stat. § 904.03, that relevant evidence may be excluded if its probative value is substantially outweighed by its prejudicial (confusing, or cumulative) effect. When that unexceptionable rule is applied as it was here to exclude highly probative, noncumulative, nonconfusing, nonprejudicial evidence tendered by a criminal defendant that is vital to the central issue in the case (Heather’s credibility), the defendant’s constitutional right of confrontation has been infringed. Olden v. Kentucky, 488 U.S. 227, 232, 109 S.Ct. 480, 102 L.Ed.2d 513 (1988) (per curiam); Delaware v. Van Arsdall, supra, 475 U.S. at 679-80, 106 S.Ct. 1431; Davis v. Alaska, supra, 415 U.S. at 316-17, 94 S.Ct. 1105; United States v. Sasson, 62 F.3d 874, 882-83 (7th Cir.1995).